The question: Are there any bounds on King Ralph’s rule by executive decree?
by James C. Sherlock
This essay is a follow-up based upon a June 7 letter from Governor Northam to the Virginia Supreme Court to which I just gained access. That letter makes the situation much worse.
The Order
On June 8 the Virginia Supreme Court issued IN RE: FIFTH ORDER MODIFYING AND EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.
That order suspended the execution of tenant eviction orders. I have no problem with that. It represents a stay well within the Court’s authority and addresses emergency public health concerns brought about by COVID.
It went further by acceding to a specific Gubernatorial request to deny access to courts by plaintiffs seeking residential unlawful detainer actions.
Unlawful detainer actions determine who is entitled to possession of property. At the request of either party, they result in a jury trial.
Suspension of residential unlawful detainer actions is unconstitutional. It suspends access to the courts for plaintiffs seeking relief under Code of Virginia § 8.01-124. Motion for judgment in circuit court for unlawful entry or detainer and § 8.01-125. When summons returnable to circuit court; jury.
The Bills of Rights of the Constitutions of Virginia and of the United States deny governments authority to suspend access to the courts for relief of grievances.
The full order is available at http://www.vacourts.gov/news/items/covid/2020_0608_scv_amendment_to_fifth_order.pdf
I recommend changing the order to read:
“Effective immediately and for the duration of the Fifth Order, through June 28, 2020, pursuant to Va. Code § 17.1-330, the issuance of writs of eviction is suspended and continued.”
The change will cure the legal problems while still addressing emergency-driven public health concerns. I have recommended the change by letter to the Chief Justice.
Governor Northam’s letter
The Order was issued in response to a June 7 letter from Governor Northam available at https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/FINAL-6.7.2020-RSN-Letter-to-Chief-Justice-Lemons.pdf
That letter should be read by all Virginians. The Governor requested from the Supreme Court an order to:
“relieve the public health risk associated with evicting Virginians from their place of residence.”
Fine. The part of the order that stayed writs of eviction accomplished that.
The letter went much further, however, and so did the order. The Governor requested:
“to suspend unlawful detainer proceedings.”
The fact that the Court granted the Governor’s request to suspend residential unlawful detainer actions is the source of the legal problems with the order and with the Governor’s request.
In support of his request, the Governor wrote:
“Section 4024 of the CARES Act provides some protections for tenants by preventing a property owner that receives a federal subsidy or has a federally backed mortgage loan from filing for eviction against a tenant who cannot pay rent for a period of 120 days. I also signed legislation that the General Assembly passed during the 2020 Reconvene Session providing tenants with the opportunity to seek a 60-day continuance of an unlawful detainer action if the tenant appears in court and provides written proof that the tenant has lost income during the COVID-19 pandemic.”
“However, not all tenants have access to these federal or state eviction protections. A subset of tenants, including those who are most vulnerable, may be evicted from their homes in the midst of this global pandemic.”
He did not support the claim that some Virginia tenants do not have access to the federal or state eviction protections he cited. He did not indicate in what way the legislation in the Reconvene Session did not protect all tenants.
At the most basic level, the claim that tenant rights are not protected by the legal system is false on its face and an insult to both the General Assembly and our legal system. Eviction protections are in place in current Virginia law for every tenant in the state.
The letter requested an order to:
“allow the Commonwealth the time to implement our comprehensive rent relief program”.
That is a request for a court order to cure executive inefficiency, not a legal argument. The law establishing that 3-year pilot program and is not yet in effect. It is also not clear that the funding is sufficient to make Virginia landlords whole. The Governor did not indicate in his letter how much time he needed to accomplish his objective. The Order is set to expire June 28 because by law it could not be issued for more than 21 calendar days. Expect another extension, or perhaps several.
The Supreme Court of Virginia sits to interpret the Constitutions and laws of the United States and Virginia, not support policy objectives and laws not yet in force.
Court Procedure Violated
I also have concerns major that the Court did not follow its own rules in considering the question. Those rules provide important protections for the independence of the Court as well as the rights of the people.
The Governor’s letter is at its core a plea for Judicial Branch relief to satisfy Executive Branch policy objectives.
It is not a legal brief, and cites no legal authority. Under Court rules, it is considered hearsay.
The Governor’s letter was written on the 7th of June and the Court Order was signed on the 8th of June,
So it appears the Court accepted the Governor’s unsubstantiated allegations without evidence and without hearing opposing briefs.
That may be the biggest problem of all.
